The fair hearing defence - Scottish court gives clear guidance on new limitation provisions

The Scottish courts have given their first detailed consideration of the ‘fair hearing’ defence provided in the Limitation (Childhood Abuse) (Scotland) Act 2017

In B and C v Sailors' Society [2021] CSOH 62 the Scottish courts have given their first detailed consideration of the "fair hearing" defence provided in the Limitation (Childhood Abuse) (Scotland) Act 2017. The two cases related to physical and sexual abuse and had been valued at a total of £2.2m. The court found that a fair hearing was impossible due to the death of the abusers and both cases were dismissed.

Clyde & Co acted for the defender.

The facts

B and C are former residents of a children's home in Scotland. They sought damages for abuse in the 1960s and 1970s. Both cases related to allegations of physical and sexual abuse. In both cases the abusers were dead. They had died before the allegations had been made. There was an almost total lack of documentation and witnesses.

The cases proceeded to a preliminary trial on the issue of limitation. Evidence was led from both parties by way of affidavits. The defender's affidavits set out the detailed investigations carried out by the defenders and their lawyers over the course of 20 years.

The law

Under the Scottish limitation regime there is no longer a limitation period for cases of childhood abuse. There are two statutory defences available to the defender:

1. That a fair hearing is not possible; and/or
2. That the defender would be substantially prejudiced were the action to proceed and that prejudice outweighs the prejudice to the claimant in the action not proceeding.

The onus is on the defender to satisfy the court that either of the conditions is met. Prior to these two cases there had been limited judicial consideration of the new provisions. This case represents the most detailed analysis of the provisions to date.

Decision

The court held that a fair hearing was not possible in either case. As a fair hearing was not possible, it followed that the court could not say that other factors would outweigh the defenders' interests for substantial prejudice.

The key factor was that the abusers were all dead. They had been dead for a long period of time. They had died before the allegations were put to them and thus the defender had had no ability to obtain the abusers' response. The court held:

"It is not good enough to say, ab ante, that a denial would make no difference. To do so leaves out of account information that the individual may be able to provide about particular aspects of the pursuer’s case, which may cast doubt on the truthfulness or reliability of all or part of the allegations. It also leaves out of account the difficulty a defender faces if it has no proper basis in the evidence available to it positively to advance a defence that the abuse never happened, or cross-examine the pursuer on that basis."

Comment

This decision brings welcome clarity on the new provisions. While each case turns on its own facts, the decision clarifies the fair hearing defence. Where the abuser is dead a fair hearing is not likely to be possible. The exceptions to that may be where the allegations have been put to the abuser previously and thus the defender has some evidence with which to challenge – or otherwise – the claimant's allegations.

The court also provided comment on some of the other lines of argument that had been put forward. While not determinative in these cases they will be relevant to other cases:

• The passage of time is not determinative: such matters are commonly the subject of criminal trials;
• The availability of other witnesses does not remedy the death of the abusers;
• The significant level of missing documents was of limited relevance;
• Evidence of the claimant's previous character would be inadmissible;
• Similar fact evidence is said to be admissible;
• The existence of other claims – and impact on the defender's financial position – is not relevant to substantial prejudice;
• Any difficulties in assessing the standards at the time (for example, what amounted to reasonable chastisement) are not relevant;
• The difficulty in establishing causation is relevant to question of substantial prejudice;
• Changes in the law (both the 2017 Act and developments in the law of vicarious liability) amount to substantial prejudice, as does the impact of judicial interest;
• Cases decided under the old limitation regime are irrelevant when considering substantial prejudice;
• Alternative remedies are relevant when balancing the pursuer’s interests. However the level of redress on offer from the Scottish Government's redress scheme is not equivalent to that which court could award;
• There is no specific comment on "carving out" separate grounds of action but the court does not suggest that the action could proceed in respect of some allegations and not others. That suggests the court would dismiss the whole action, contrary to the comments in JXJ v Brothers of the Christian Schools [2020] EWHC 1914 (QB).

Practitioners on both sides will welcome these comments to assist them in dealing with outstanding cases. While this judgment has provided some clarity, one matter that is absent is detailed analysis of the substantial prejudice exception. While understandable given the decision on fair hearing, we await further judicial guidance on what is meant by substantial prejudice and how the court will carry out the balancing exercise.